State v. Dickert
| Citation | 268 P.3d 515,2012 -NMCA- 004 |
| Decision Date | 07 December 2011 |
| Docket Number | No. 29,720.,29,720. |
| Parties | STATE of New Mexico, Plaintiff–Appellee, v. Audie DICKERT, Defendant–Appellant. |
| Court | Court of Appeals of New Mexico |
OPINION TEXT STARTS HERE
Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.
Jacqueline L. Cooper, Acting Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} There were two motions for rehearing filed in this case. We deny the State's motion for rehearing. We grant Defendant's motion for rehearing. The opinion filed on July 26, 2011 is withdrawn, and the following opinion is substituted in its place.
{2} Around midnight on May 30, 2007, after having consumed a considerable amount of alcohol, Defendant accompanied three friends to a party in a desert area outside Las Cruces, New Mexico. There was a serious altercation, and Defendant was identified as one of the persons who attacked other attendees; who inflicted significant harm on one of them; who severely damaged two vehicles using a baseball bat and rocks; and who took or orchestrated the taking of some Red Bull, two cell phones, a car stereo faceplate, and compact discs. He was indicted for numerous crimes related to the events of the evening. The primary issue in this case relates to jury instructions. At trial, Defendant testified and denied having committed the acts underlying the crimes charged. At the close of trial, Defendant requested a jury instruction on intoxication as a defense to the specific intent crimes charged. The district court refused the jury instruction on the ground that Defendant's theory of noninvolvement was inconsistent with the defense of intoxication. The propriety of this ruling is a question of first impression in New Mexico. Because a criminal defendant has a right to an instruction on any recognized defense for which evidence has been presented and because we leave it to the jury to assess the credibility of the theories offered, we hold that the jury instruction on intoxication should have been given. Thus, we reverse and remand for a new trial on the specific intent crimes. Defendant also claims error based on a confrontation clause violation, insufficient evidence, admission of evidence, and ineffective assistance of counsel. We affirm on these issues.
{3} We begin with a summary of the testimony presented at Defendant's trial. Because Defendant was ultimately convicted of several of the counts charged, we view the evidence in the light most favorable to the verdict. State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994).
{4} On May 30, 2007, Defendant attended a party at a location in the desert outside of Las Cruces known as “the pit.” The pit is an area in the desert surrounded by hills where teenagers or college students go to associate and have bonfires. Defendant arrived at the pit around midnight and had been drinking heavily beforehand. He was accompanied by Chad Williams, Kadrian Lucero, and Isaac Gutierrez.
{5} When Defendant arrived, there was only a small group of people present. This group included Jacob Baca, Jacob Vasquez, Cesar Villa, Jeff Martinez, and Crystal Marshal.
{6} At that time, Jeff and Crystal were employed by the Red Bull beverage company and were on a promotional tour. They had been given use of a Red Bull company car as part of their duties. The car was adorned with a replica of a Red Bull can on its roof and had the Red Bull logo painted on its side. They had driven the company vehicle to the pit and had gratuitously dispensed Red Bulls throughout the evening.
{7} Defendant, Kadrian, and Chad approached the group. Defendant was agitated and angry and inquired several times about a person named Patrick. The group repeatedly denied knowing this person, and eventually Defendant and his companions began to walk toward their vehicle. They returned, however, and again they angrily confronted the group.
{8} This time, Defendant claimed that someone had thrown a rock at them and demanded to know who was responsible. The members of the other group all denied having thrown a rock, but Defendant would not accept this response. He became enraged, took off his shirt, and attempted to punch Jacob V. Jacob V. avoided several punches and fled into the desert.
{9} Jacob B. knew Defendant somewhat and unsuccessfully attempted to calm him down. Defendant continued to act aggressively, and Jacob B. backed away. Kadrian and Chad had armed themselves with baseball bats at this point and approached Jacob B. They accused him of throwing the rock, so Jacob B. also fled into the desert. As Jacob B. was fleeing, the three men screamed that they intended to kill him.
{10} Cesar also knew Defendant somewhat and similarly attempted to reason with him, but this proved fruitless. Kadrian hit Cesar with a rock; Chad then threatened Cesar with a bat and told him to shut up or he would hit him. Cesar also fled into the desert.
{11} Meanwhile, Jeff and Crystal tried to get to the Red Bull car to escape the situation but were prevented from leaving when Defendant instructed Chad and Kadrian to stop them. The three men then confronted Jeff and Crystal and demanded that they relinquish all of their Red Bull. Jeff and Crystal complied with this demand. At one point, Chad struck Jacob V.'s dog with a bat and Jeff protested. Jeff was then struck with a bat and was rendered unconscious. Kadrian picked Jeff up, and Defendant hit him with the bat again. This act was repeated once more. Defendant also punched Jeff while he was lying on the ground unconscious.
{12} After the attack on Jeff ended, Defendant took Jeff's cell phone from his pocket. Simultaneously, Chad demanded that Crystal give him her phone, which she did. Cesar witnessed this activity from a distance and stated that Defendant orchestrated the theft of the phones.
{13} Crystal pleaded with Defendant and his companions to leave them alone, but her requests were ignored. She had been instructed to lie down and had done so. At some point, however, she stood in defiance, and Defendant commanded her to get back on the ground and pushed her down. She stood back up, and Defendant pushed her down again. When she stood up a third time, Defendant started screaming incoherently at her.
{14} Eventually, Chad responded to Crystal's pleas and helped Crystal put Jeff in the Red Bull car. Crystal drove away hurriedly and, as she was driving away, she heard Defendant yell at Chad for allowing them to leave. Cesar witnessed Defendant smash out the rear windshield of the Red Bull car as Crystal drove off.
{15} During the course of the melee, Defendant participated in attacking both the Red Bull car and Cesar's Ford Ranger. The vehicles were struck with bats and rocks, and both vehicles sustained significant damage. In addition, Defendant entered Cesar's truck and took his stereo faceplate and compact disc collection. Cesar heard Defendant and his accomplices indicate their intention to steal the truck, but they could not get the truck started so they abandoned this plan.
{16} Defendant and his accomplices eventually fled the pit and traveled to a Circle K. The police had been contacted and arrested Defendant and the other men at that location. Cesar's stereo faceplate and compact disc collection as well as numerous cans of Red Bull were found inside the car driven to the Circle K by Defendant's group. At the police station, Defendant's behavior was erratic and violent.
{17} Chad and Kadrian were charged separately and entered into plea agreements. They testified against Defendant at his trial. The two Jacobs, Cesar, Jeff, and Crystal also testified, as did several of the officers who were involved in the aftermath of the incident. Defendant testified, and he denied both engaging in most of the above-described conduct and committing the charged crimes.
{18} At the close of trial, the district court granted a directed verdict as to several of the charges. Defendant requested an intoxication instruction pursuant to UJI 14–5111 NMRA as a defense to the specific intent crimes he was charged with, but the court declined to issue the instruction on the basis that it conflicted with Defendant's testimony that he did not commit the crimes alleged.
{19} The jury found Defendant guilty and convicted him of eleven counts including: two counts of robbery for taking Jeff and Crystal's cell phones; one count of aggravated battery for attacking Jeff; aggravated assault, false imprisonment, conspiracy to commit false imprisonment for his conduct towards Crystal; burglary of a vehicle for entering Cesar's truck with the intent to commit a theft within; larceny for taking Cesar's stereo faceplate and compact disc collection; two counts of criminal damage to property for intentionally damaging Cesar's truck and the Red Bull car; and battery for his conduct towards Jacob V. Defendant was sentenced to twelve years' incarceration, with nine of those years suspended, and two years of parole. Defendant appeals.
{20} On appeal, Defendant raises five issues. First, he claims that the district court erred in refusing to issue his requested instruction on the defense of intoxication. Second, he asserts that his right to confrontation under the Sixth Amendment was violated when the court refused to allow him to cross-examine Chad about his mental faculties. Third, he challenges the sufficiency of the evidence underlying the two robbery convictions, the false imprisonment conviction, and the criminal damage to property conviction related to the damage sustained by Cesar's truck. Fourth, he claims that the court erred in admitting the State's photographic evidence because the State failed to lay a proper foundation. Finally, he claims, pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d...
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